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Poster: dimitriskats Date: Oct 3, 2009 3:04am
Forum: 78rpm Subject: Copyright exists -- Free 20s Jazz Collection

I used Eubie_Blake-Chevy_Chase_11KHz.ogg on YouTube

I got a message that SONY has the copyright.
This link proves that they are right
Its the second track from top

Embarassing to say the least!!

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Poster: Video-Cellar Date: Oct 8, 2009 1:45am
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

I got a rights claim on Youtube for using a 1920 recording of a baroque classical piece I got off IA. I thought it was a mistake until I looked further into it.
There is a strong argument to be made for there being NO pre-1972 sound recordings in the public domain in the US. Before 1972, recordings were not protected by federal copyright law but by individual state anti-bootleging laws and common law copyright.
All pre-1972 sound recordings, even those that were fixed before 1923, are protected under federal copyright as if they were fixed and published in the year they became protected under federal law. They do not enter the public domain until Feb 15 2067. At that point all recordings made before 1972 enter the public domain in one lot.
When using sound recordings you also have to take into account the composition and/or lyrics that appear in the recording. These are covered by a seperate copyrights. In order to use a composition in a sound recording a generic, compulsory ("mechanical") license is needed. The Archive should have one of these, otherwise the Live Music Archive is monumentally illegal as it reproduces thousands of copyright compositions without proper license. If you use a composition/sound recording in a video a "synchronisation" license is needed as well as the "mechanical" license. These are very expensive and their is no generic copyright collection agency to get synchronisation rights from - they have to come direct from the publisher.
Except for creative commons stuff and foreign records that were PD in there native country before GATT/URAA came in on 1 Jan 1996 (i.e. European and Australian recordings pre-1945, etc) most of the items in Audio are under some form of copyright, whether its common law copyright or the compositional copyrights.

This post was modified by Video-Cellar on 2009-10-08 08:45:02

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Poster: Brackney Date: Nov 10, 2009 10:14pm
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

I am not a lawyer. I want to understand these issues.

From what I have learned reading, there is no such strong case to be made for *all* recordings to be copyrighted automatically until at least 2067. In fact, the way I have come to understand it, that protection is primarily extended to certain works created in foreign countries.

Certainly copyright laws are quite complex. But I have come to understand that while some works were properly registered and renewed, the majority of musical compositions and recordings produced in the U.S. were not, and especially that before the big band era with the accompanying need for written music, the musical composition -- lyrics excepted -- that was sometimes copyrighted by the publisher arguably bore little resemblance to the notes captured in jazz era recorded music.

Surely most of us are aware of some of the exceptions, such as the movie "Sita Sings the Blues" which could not be distributed in the U.S. without a costly lawsuit until a settlement was reached. Still, the issue there was probably not that valid copyrights were in effect, but instead the settlement was a business expedience.

Jazz music survived to become mainstream, but in the 1920's it was marginalized. Most of the record companies that produced jazz saw copyrights as being useful for a few months only, until the novelty wore off. They would print a copyright notice on a record label but not seriously pursue their copyrignt by filing a copy of the record with the copyright office and later renewing the copyright. These were necessary for a U.S.-made recording to have it's copyright period extended to the maximum. They would pay the publisher of the sheet music a license fee -- mostly for using the lyrics verbatim. They usually went for a quick pay-off in record sales and then they abandoned their copyrignts as quickly as the law allowed.

One other little informative tidbit: it's not at all true that copyrights for recorded music didn't exist before 1978. They existed, but the format required for making a copyright statement for a record was little understood. Instead of the circle "C" symbol that is used for other published works, records required an enigmatic little right-arrow in a circle. Not being a lawyer, I don't know all of the legal issues, but it would seem that if the record were published with a "C" instead of the proper symbol then the case is weakened that copyrights were applicable for any period.

If that wasn't bad enough, the company that held the copyright sometimes ceased to exist. Yes, some survive, some were bought out, but some were dissolved.

This is all kind of hit and miss. But speaking just as a non-lawyer and as a visitor to rather than as an involved participant, I would think that your concern regarding content you placed on YouTube might also hinge on whether you synchronized lyrics or music published in a foreign country to a video. In that case, a whole new set of concerns would apply that would have no bearing on the appearance of the recording on, and the year 2067 might come into play.

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Poster: Video-Cellar Date: Nov 11, 2009 2:42pm
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

Sound recordings were not covered by federal copyright until the 1971 Copyright Act ammendments. Prior to that date, all sound recordings (radio, live and studio recordings, released or otherwise) would have legally been considered "unpublished" for US copyright purposes as no definintion of publication existed for sound recordings. They were protected by prescribed rights and remedies set out by state based laws which amounted to (perpetual) common law copyright.

The 1971 ammendments brought sound recordings under the protection of federal copyright law for all recordings published on or after 15 Feb 1972. Under the law, the common law protection of the existing recordings was not annulled or limited until after the full term for a sound recording made on 15 Feb 1972 had passed. There are no copyright compliance requirements for this protection. It was automatic. But it was not until the 1976 copyright act, effective 1 January 1978, that a definition of "publication" for a sound recording was included in the statute. Under federal law, no recording made before 1 January 1978 is considered to have been "published."

In the state of California, where Internet Archive is based, the penalties for breaching the common law protection of sound recordings are set out in the California Penal Code Section 653h. As IA is a not-for profit it is probably not illegal for the sound recordings to be housed here. But they can not be used for commercial gain. And strict guidelines about seeking out the copyright owner and that only documentable "orphan" works can be used are applied. However, some state courts have found that common law protection is much wider and even applies to recordings from foreign countries which are public domain in their home country, see Capitol v Naxos.

Prior to 1972 there was no uniform copyright symbol for sound recordings as there was no need for one because federal copyright formalities did not apply to them. After the 1972 act the prescribed copyright symbol for sound recordings is a capital "P" (for "Phonogram") in a circle.

Copyright in composition is a different issue. A composition is published when it is published in a print form. The differences between the sheet music and the music on the recording, even in improvisational music, is a copyright protectable musical arrangement. If the arrangement hasn't been published in a printed form, only on a record, it is an "unpublished" work and protected for a longer period than the sound recording. The "distribution before January 1, 1978, of a phonorecord shall not for any purpose constitute a publication of the musical work embodied therein" (17 USC § 303 [b]).

The only category of sound recordings that are public domain are:
Sound recordings published between 1 January 1978 and 1 March 1989 which were released without a correct notice and subsequent measures were not taken to address the ommission or the item was not registered for copyright within 5 years of publication.

The "Sita Sings the Blues" problems were copyright issues. The owners of the sound recordings and compositions required a license fee for use in the USA. Standard licensing was about $250,000. The filmmaker choose a limited distribution license for about $50,000.

The majority, if not all, of the early sound recordings on the Internet Archive are protected by common law copyright.

This post was modified by Video-Cellar on 2009-11-11 22:37:21

This post was modified by Video-Cellar on 2009-11-11 22:42:30

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Poster: Brackney Date: Nov 11, 2009 5:39pm
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

I see; so what you're telling me is that the 1971 Federal copyright law granted no new protections to the owners of the sound recordings created prior to some cut-off date that was close to the date of passage of the law, leaving them controlled by previous law, except to define them, for Federal copyright law purposes, as unpublished.

Then, in the California statute example that you chose, the only problem would occur if the recordings were to be resold, or if someone distrubuted them for profit somehow, in which case it would essentially be a criminal matter. I suppose, then, that the statute would not itself grant an owner recovery of money if someone were found guilty.

So that would mean that an individual who copied music that was recorded prior to the cut-off date of the law but did not profit from resale or some similar activity would only be at risk from some law we've not discussed, such as the statutes of some other state, or where no such statute existed, the applicable though vague and variable common law.

Why, what I hear you saying is then this means that whenever someone comes on this forum to make a blanket statement similar to yours that says that copyrights for recordings made prior to the 1971 law extend uniformly to 2067, he is only bluffing. Instead, the meaning is that the 1971 Federal Copyright law protects people living after 2067 from vagaries of the non-uniform statutes and common laws that were in existence prior to 1971. The Federal law didn't extend anything out to 2067, it only cut off copyrights, for instance, from any city that might have had a local law extending local copyrights 1000 years.

And, if the states and localities did not have decisions and/or statutes in place regulating copyrights on recordings, similar to the situation in Federal law, then no copyright exists.

Do I catch your drift right?

Reply [edit]

Poster: Video-Cellar Date: Nov 11, 2009 8:39pm
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

Set forth in the section of California statute are the penalties for trafficking bootlegged recordings and the exemptions for the common law protection of recordings. The penalties relate to commmercial use of as little as 100 copies. The exemptions are strictly related to not-for-profit educational use were the recording is demonstrably "orphaned" and there has been a vigorously documented attempt to trace and contact the copyright proprietor. This does not include private not-for-profit use. California's current statutes protect all sound recordings made before 15 Feb 1972 until at least 2047.

I would suggest reading the full judgement in the Capitol v Naxos case. It gives a reasonable overview of British Common Law and the development of Common Law and statutory copyrights in the states. It also covers the debates related to the 1971 Copyright Act ammendments (the House wanted to limit the common law protection of recordings fixed before implementation and the Senate's view was that the common law coverage should not be limited. Full term protection from implementation was a compromise.) The limitation of protection is also tied in with copyright extensions. If a further extension is made the term will increase. The date has already changed from 2047 to 2067 through the Sonny Bono Act.

Generally, Common Law protection for unpublished works is virtually perpetual and this is fairly uniform accross all the states. Common Law copyright does not have to exist in statute (that is why it is called "Common Law"). It is essentially copyright as chattel right rather than an intellectual property right. Basically, the legitimate owner of the physical master owns the reproduction right thereof. Criminal and other statutory penalties and remedies do need to be set down in legislation.

Below is the section of federal copyright law related to pre 15 Feb 1972 recordings.

17 USC 301:
(c) With respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067. The preemptive provisions of subsection (a) shall apply to any such rights and remedies pertaining to any cause of action arising from undertakings commenced on and after February 15, 2067. Notwithstanding the provisions of section 303, no sound recording fixed before February 15, 1972, shall be subject to copyright under this title before, on, or after February 15, 2067. (d) Nothing in this title annuls or limits any rights or remedies under any other Federal statute. (e) The scope of Federal preemption under this section is not affected by the adherence of the United States to the Berne Convention or the satisfaction of obligations of the United States thereunder.

As a side note, all foreign recordings (pre 1972 or otherwise) that were copyright in their country of origin at the effective date of URAA (1 Jan 1996) are protected under the federal law (§104A of the Copyright Act).

This post was modified by Video-Cellar on 2009-11-12 04:39:30

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Poster: Brackney Date: Nov 11, 2009 8:52pm
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

Thank you; I see that you hesitantly agree with me except for certain obfuscated paragraphs wherein I see confusion created over whether common law copyrights as are applicable to written works can be taken to apply to recorded music in the United States.

Once again, I am not a lawyer, just a curious onlooker. But, I got this tidbit from Cornell University online:
It agrees with some of what you have told me in word though clearly not in spirit. The essential difference is the interpretation of Capitol vs. Naxos as strengthening the arguement that common law copyrights are so universally in effect for recorded music. In Capitol vs. Naxos the court flatly rejected the contention that common law copyrights apply so predictably. In effect the decision carved out new rights for the public domain even to the degree that it encourages the publication and sale of recordings that might otherwise have been thought to be protected by copyrights. See:

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Poster: writerpatrick Date: May 5, 2010 8:41am
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

One of the problems with the new law is that many companies seem to be using it to claim copyright on PD material. But material that was PD before the new law is suppose to remain PD. It's only copyrighted works that are covered.

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Poster: Video-Cellar Date: Nov 12, 2009 7:46am
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

I don't believe I hesitantly agree with your comments. There is no confusion in my position, which is that there are no sound recordings fixed prior to 15 February 1972 in the "public domain" in the US and that all states have a number of common law and statutory (excluding Vermont) protections for sound recordings made before that date. Common Law copyright protection ceases when an item is published. State and Federal case law and Federal statute has shown that distribution of sound recordings, fixed before 1 January 1978, to the general public is not an act of publication. Other common law and statutory property, trade practises and privacy principles operate separately to common law copyrights and do not cease when a common law copyright ends. Use of pre 15 February 1972 sound recordings presents a minefield of legal issues should an owner of a sound recording choose to pursue action against an unauthorised user.

The Cornell "Copyright Term and the Public Domain in the United States" chart you linked above seems to agree with me. What follows is a summary of the information the chart contains regarding pre-1972 recordings.

Unpublished Sound Recordings, Domestic and Foreign
DATE: Prior to 15 Feb. 1972
CONDITIONS: Indeterminate
STATUS: Subject to state common law protection. Enters the public domain on 15 Feb. 2067

Sound Recordings published in the USA
DATE: Fixed prior to 15 Feb. 1972
STATUS: Subject to state statutory and/or common law protection. Fully enters the public domain on 15 Feb. 2067

Sound Recordings published outside the USA
DATE: Prior to 1923
STATUS: Subject to state statutory and/or common law protection. Fully enters the public domain on 15 Feb. 2067

DATE: 1923 to 1 March 1989
CONDITIONS: In the public domain in its home country as of 1 Jan. 1996 or there was US publication within 30 days of the foreign publication
STATUS: Subject to state common law protection. Enters the public domain on 15 Feb. 2067

DATE: 1923 to 15 Feb. 1972
CONDITIONS: Not in the public domain in its home country as of 1 Jan. 1996. At least one author of the work was not a US citizen or was living abroad, and there was no US publication within 30 days of the foreign publication
STATUS: Enters public domain on 15 Feb. 2067

Adapted from "Copyright Term and the Public Domain in the United States 1 January 2009" by Peter B Hirtle.

This post was modified by Video-Cellar on 2009-11-12 15:46:51

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Poster: Brackney Date: Nov 12, 2009 5:24pm
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

I've been trying to understand your point of view on these issues through a long and weighty thread by now. For me, the reason is that I want to understand clearly whether a not-for-profit web site -- one that I am interested in constructing essentially for the personal entertainment I'd get through the process of the building -- can utilize some of the music found in sources like the UCSB Cylinders Library, this Internet Archive, and yes, YouTube, wisely and selectively, without violating copyrights and/or statutes.

From my perspective, this thread began with your statement, "I got a rights claim on Youtube for using a 1920 recording of a baroque classical piece I got off IA." From my own experiences browsing YouTube, this suggests that a piece of music that you synchronized with your own YouTube video was still under copyright according to someone who contacted YouTube, and YouTube responded by silencing your video.

Of course, you bring up a very special case. Google profits by selling advertising on YouTube, so must take responsibility whenever such a copyright challenge has merit. Synchronizing music to video has a certain special meaning to the courts, too, as a positive act. Therefore, music on your video might get much more scrutiny from copyright holders or perhaps under statutory law it might gain more attention than it would if it were simply stored on where no one profits by it.

In my experience, people who produce videos for YouTube are proud of their works and quite defensive of the validity of their use even of recordings that are clearly under copyright. And, yet, you have taken a very opposite emotional stance. Instead of being defensive of your art on YouTube, you are actively promoting an extremist viewpoint and legal position in support of the rights of copyright holders in the courts.

Your views on copyrights are so strong that you have sought out a forum such as this one on which to express your ideas, and you are seemingly quite willing to exaggerate on the subject. There is something about your arguments that belies the original premise of your post: "I got a rights claim on Youtube for using a 1920 recording of a baroque classical piece I got off IA."

So, frankly, throughout this post I have come to distrust most of what you've written based on my revised estimation of your original level of truthfulness.

You see, if you had actually experienced what you've told to this forum with your YouTube video, you'd be more likely to lead with a very precise identification of the offending baroque classical piece. You'd be asking the forum for advice on your next project -- "What musical pieces would be less likely to violate copyrights and more likely to be approved on YouTube?"

And then there's the content of your ongoing arguements to attract my distrust. If you were actually interested in your art on YouTube, you'd perhaps have selected different legal precedents to quote here. Music from the baroque classical period typically pre-dates all common law and statutes dealing with copyrights, and there are absolutely no successors in interest remaining to complain to YouTube regarding such musical pieces.

The details of your arguements extend specific court cases into sweeping generalities, such as an unusual case of 3 British recordings from the 1930's and a unique legal decision that only has meaning in New York but nowhere else being exaggerated into your ideal way of regarding all copyright issues for recorded music.

No, I'm sorry, I'm going to terminate my part in this thread because I feel I am dealing with a sophist.

Reply [edit]

Poster: Video-Cellar Date: Nov 13, 2009 12:26am
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

I am a strong advocate of the public domain. It is how I make my living. So I don't like to see it limited. But I am also a realist and, unfortunately, I can find little strong evidence that sound recordings (particularly those made between 1909 and Feb 15 1972) are in the public domain in the US. If you look at my forum history you will see that I am a regular contributor to "Feature Films" and "Classic TV" providing information on copyright status for films and TV. I tend to take the conservative view when making a judgement on a film's status. If your judgement carries weight with people, and means the difference between uploading and not uploading a film, you are potentially dealing with person's livelihood, should their upload prompt a rights owner to pursue legal action against them. My view on sound recordings copyright is the conservative view NOT the extremist view.

I replied to the initial post in this thread because I had had a similar experience on the same website with the same complainant, but with a recording containing an underlying work without the potential to have mechanical copyright protection.

The piece I used on Youtube was a Victor recording of a piece by Handel. I am not a classical enthusiast so I am not sure what the piece was called. I only use classical music as a means of providing a soundtrack to any silent shorts I upload to Youtube. I subsequently discarded the sound recording.

As I live in Australia, where the compositional right in music for works created 1954 or before was life + 50 years and the copyright in the sound recording copyright lasted 50 years from recording or 50 years from publication if released within 50 years from recording, my use of the recording was perfectly legal in my home jurisdiction. However, in using Youtube, I have agreed to abide by the United States Copyright status of works when selecting material for upload.

The claim was from Sony. I decided to do some research before assessing whether or not to lodge a counter-notice. I discovered that Sony is the successor in ownership for the sound recording through their merger with Bertlesmann, the successors of the RCA/Victor Recording Company.

Google/Youtube take action on all copyright claims, meritous or otherwise. This was an automated content match to the sound recording. As Sony has a content deal with Youtube, the video was not silenced until I removed the audio. Subsequent to the audio claim, a claim on the video content was made by another party. The second claim was unfounded and has become the subject of my own counterclaim.
Evidence of this can be seen here.

When I inquired with Youtube, I found that the issue was with the sound recording not with the synchronisation of the musical composition. No one would argue that the composition is covered by any limited term copyright anywhere in the world. My research led me to believe that the claim on the sound recording was genuine and that if a counter-claim led to legal action in Youtube's jurisdiction I would probably be found to be in violation of a number of statutes and common law principles. The legal advice I received agreed particularly because my use of Youtube is commercial - promoting my business.

Before commencing work on a website including historical recordings I would recommend reading the report for the National Recording Preservation Board "Protection for Pre-1972 Sound Recordings under State Law and Its Impact on Use by Nonprofit Institutions: A 10-State Analysis" available here. It goes through the legal principles and statutes, their development and scope, provides an analysis of 10 of the key states regarding sound recording rights and the potential "fair use" defenses for non-profit use of "orphaned" works. This is one of a series of reports on the issue which are also useful.

This post was modified by Video-Cellar on 2009-11-13 08:01:54

This post was modified by Video-Cellar on 2009-11-13 08:26:44

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Poster: Brackney Date: Nov 14, 2009 10:19am
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

OK, so I'm going to suspend disbelief for the moment and try to put the Internet Archive into context for you so that you can understand the *uniquely*American* aspect of the organization, and this will contrast with any possible cosmopolitan view that I hold and not represent my true viewpoint. Mind you, I'm only a visitor to the web site and not a founder nor a patron, and I am not a lawyer, but instead I am a voter – this means that I am one of a class that is technically in charge of all American lawyers, though few lawyers are listening.

Americans take pride in defending their human rights and the rights of others. Never mind that this tendency grew from what is now an ancient tyranny -- it is a very real and palpable element within the American psyche. Were our resolve to defend human rights seriously weaker, then all of Europe would now be slaves of Germany and all of Australia would be enslaved to Japan. Americans volunteered for the defense of the world against tyranny and gave their lives in that defense.

But Americans also recognize that sometimes the inalienable rights of one man impinge upon the inalienable rights of another man. Although the final blows of World War II probably saved 5-10 million Japanese lives by finally convincing their government that their cause was futile and no longer worth shedding blood over, nonetheless to the people of Hiroshima and Nagasaki (here, among many others) we still bow our heads in a certain shame.

To an American, the issue of copyrights is an issue of the inalienable rights of one man in conflict against the inalienable rights of another. When you speak to one group of men about it you get one view, and from another group of men you'll hear the opposite view. And, frankly, a man who moves between the two groups frequently adjusts his views for the context in which they are to be interpreted.

As for recorded music, the vast majority of Americans fit directly into a group of men that I will label "Napster". This group of men recognizes that while Michael Jackson was in court being prosecuted for scandalous conduct in the presence of children, he was collecting money for his defense from licensing fees that Paul McCartney of the Beatles had to pay in order to perform his own songs on tour – though according to many with reasoned viewpoints the Beatles copyrights should have expired long before.

The typical copyright term that was approved of by states of the United States (thus by voters) was between 14 and 28 years. These were once echoed in our federal copyright laws. To most of us living in the United States who have ever considered the issue, any extension of the terms of a copyright beyond the 14 and 28 year terms of our early laws represents an abuse of our legislative system by big business. There is also an element of animosity in the view of the American voter that pressure to extend copyright terms also came from the *even*more*corrupt* foreign powers who worked to extend copyright terms through treaties that amounted to subversion.

At the same time, we revere our rock stars, big and small, and we want to protect their interests, though these sometimes can only be described as "big business". Here, rock stars should be understood to represent all of those in the limelight -- even if the only thing in the limelight is a pen name.

The American tradition of states regulating copyrights locally was, before 1900, an extremely good system for its time. The uneven regulations of the day actually served very well to adjust to the changing landscape of the localities with local knowledge about how best to balance the rights of one man vs. those of another.

The United States Senate and House of Representatives stepped in when it seemed that a more uniform approach was required, because of the changing nature of commerce, but they have consistently seriously botched the job of lawmaking that they were entrusted with in regard to copyright laws. I guess it could also be accurately said that they proved that they were corrupt repeatedly. They wrote bad law, as I’m sure you’ve observed. And, unfortunately, there's no going back on these abuses that have occurred in the past.

What you are going to find with the founders of any "grassroots" forum such as this one on is a more humanistic viewpoint, one representative of what an American would call the majority viewpoint, to copyrights. We are struggling to defend the vestiges of control by states against the ill-conceived and corrupt approach of the US legislatures wherever possible, and this struggle will continue until voter's rights are reinstated by abandonment of the hugely abusive terms of copyright that are being forced on us by the big business that buys and sells influence in our legislature.

I use the term “Napster” to represent the group of Americans who share this viewpoint even though I and the vast majority of Americans who share this view never visited the internet’s Napster site and would not have. Napster took a misstep and allowed, shall we say, “post 1978 recordings” to be exchanged by their members, thus both falling out of the legal sphere and, in the views of those who still are in the majority, out of the moral sphere. But had Napster limited its activity to the Jazz era, the Swing era, the pre-1978 Rock and Roll era and earlier, then their activities would have been unchallenged, though the RIAA might have tried to shut down the internet at some state borders. Nonetheless, Napster represented an extremist view that planted a flag that still stands in clear view and is still influential, though their leadership has now joined forces with the corrupt big business interests.

The world is becoming increasingly cosmopolitan. From state’s rights of the past to the cosmopolitan future it is important that the forces of transition always keep in mind the mistakes of the past. American federal copyright law is a huge fiasco, with grossly inflated terms of copyright, but sadly the international situation is largely seriously worse. The rate of change of life is increasing in our world, I would predict that copyright law will increasingly move back to something more like the original common law meaning of copyright – the right of first publication. Copyright terms will predictably gradually narrow in the future, as will the terms of patents, and the types of works eligible for copyright and inventions eligible for patents will be likewise narrowed, as issues of the public interest are increasingly brought to the forefront and the abusiveness of our present system becomes more clear.

I’ve extended the suspension of disbelief as a courtesy to you; I take you to be an Australian who is no expert on the legal requirements that Google (YouTube) must adhere to, according to your own statements (I am no expert, either). Even among experts in New York and U.S federal copyright law, and frankly especially among them, the court decision that you’ve chosen to quote is highly controversial and among those most likely to be overturned. There is a backlash against them being expressed in other judicial districts and among lawmakers, as there is against the general condition of copyright and patent law in the United States.

And, note especially, because you are an Australian resident, these are frankly not laws that apply to you. They apply to Google, certainly, but only because Google has offices selling advertising in New York. If not, then they would not have silenced your video, because Sony would then have to pursue their interests with Google in California, where case law has taken a slightly different approach and where Sony is unlikely to prevail. So work with Google’s limitations as best you can, and adhere to Australian law, but don’t admonish those of us in the United States to adhere to your conservative (I think you really mean “safe”) interpretation of American law that is foreign to you. Voters in the US are on the forefront of battle forces engaged against the forces of corruption on large numbers of issues important to us, and therefore we are less likely than you to be pleased with the “safe” approach. I hope you will understand.

Google’s administration understands their embattled position very well. I am happy as an observer to say that, with YouTube, Google has often taken a moral stance that seems to agree with the American voter against the forces of corruption. YouTube, of and by itself, is the internet’s successor to Napster, and works to extend the definition of “Fair Use” outward from the embattled core of “non-profit educational institutions” to encompass derivative work as personal art that is not for profit and that contains more than tiny slices of the parent work. It does so by demonstrating directly to the holders of copyrights that an expanded definition of fair use would work in their behalf rather than against them, for example often increasing record sales rather than damaging their business.

Now, I am going to return to a more skeptical mode of living, so please make any point of view that you express in response to me more consistent than those that are contained earlier in this thread.

Reply [edit]

Poster: Video-Cellar Date: Nov 14, 2009 7:32pm
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

I believe I have been consistant in my views throughout this thread. That why after this post, I'm leaving the thread. I feel I am going around in circles with a person who denies the complexity of the issue. In short you're boring me and probably anyone else who has had the misfortune of reading this thread.

I have a long list of copyright research on Feature_Films to deal with. I prefer my time spent on IA to be purposeful. There are a few things you covered in that I thought I needed to address.

I do not believe that there is anything wrong with my method of identifying items that are held in the public domain. That is that the item is supposed copyright until proven public domain. Yes this is a "safe" view, but with the criminal and civil penalties for copyright infringement the way they are, and the potential for a simple mistake on line to become a massive infringement, it is irresponsible, if not naive, to look at things from the opposite point of view.

For a work to be "in the public domain" it has to be free from ALL copyright, intellectual property and related protections, statutory or common law. For that reason alone pre-1978 sound recordings are not "in the public domain" in the US - simply by virtue of the myriad state and federal laws protecting them.

I understand that you are viewing this as a user of copyright works. My views come from being both a user and creator of copyright works. As a person who has assigned copyrights in the past, I have nowhere near as much of an ethical problem with McCartney paying MJJ and Sony for the right to use his own songs (he ultimately gets royalties) than I do with Macca collecting on copyright catalogs that have never generated a cent in royalties for the writers and composers. But I understand that this is the system that you had to work with at that time.

Napster would not have been on safe ground simply by sticking to pre-78 recordings. You can test it in five easy steps:
1. Build a page based in USA.
2. Post the some recordings on it. Be daring, post Elvis Presley's first album on there. This is PD just about everywhere in the world. So why shouldn't it be in the US.
3. Wait for the DMCA.
4. Lodge a counter notice citing their PD status in the US.
5. Go to court and see what happens.

The fundamental issue that you seem to totally misunderstand is that copyright in a musical composition and lyrics and the copyright in sound recordings operate exclusively of each other. Publishing one does not necessarily publish the other. One entering the public domain does not place the other in the public domain. Compulsory licensing of mechanical rights in compositions and lyrics is not a free license. Royalties must be paid to a collection agency per copy or performance, whether for profit or not for profit.

I am a long term Internet Archive contributer and user. I understand its not UNIQUELY American ideals and purposes. This site is used and contributed to by individuals from many different countries. "Universal access to human knowledge" is, dare I say it, a fairly universal mission. Freedom of information and the public domain are not uniquely American ideas. They existed before America and will exist after America.

I am a trained historian, but I took law early in my undergraduate career and studied some copyright law. I understand that while I am bound by the copyright laws of Australia, I am also, under the DMCA provisions of our countries' FTA, bound to many aspects of US law regarding the things I post on US sites. I wouldn't post Universal's 1931 Frankenstein movie (PD in Australia) on a US site and expect to just get away with it. Would I?

Copyright in the United States, prior to 1978, had never been an issue of moral or human rights. An "inalienable" does not have to be applied for on a national register. If US copyright had been founded on the individual's human right to limited exclusive control of their creative endeavours, the system would not have been founded on what is generally known in copyright as "neighbouring" rights. That is, fixed term protection devoid of "moral rights". For example, in most copyright systems internationally, original creative works such as literature, musical composition, lyrics, drama and artwork are offered copyright (protection for the life of the author plus a certain period of time after death), while other works, such as films, sound recordings and typographical arrangements are offered fixed terms of protection. These "neighbouring" rights, much like the US copyright system before joining Berne, do not include moral or authorial rights and are essentially a limited-term right of exclusive exploitation for works deemed to be of commerce not art.

The United States was formed as a conglomeration of smaller corporations (states) primarily for commercial reasons. My studies of US history have highlighted the cause of free enterprise many times over the cause of freedom as an impetus for the 13 colonies secession from the British Empire. It is difficult for me to agree with your ideas about where proprietary rights are headed. As long as the US remains a corporation with the veneer of democracy, I strongly believe the world will see a openly gay female atheist US President before they see your proposed copyright system. With the copyright, political and corporate system as it is in the US today it is, unfortunately, unlikely that all copyright works published in 1923 will enter the public domain at the end of 2018.

I am unsure exactly where the US involvement in the Pacific War has to do with your argument on copyright. Am I supposed to feel indebted to you as a US citizen and accept your naive interpretation of the issues? Your view appears to be that copyright coverage for sound recordings is piecemeal and therefore non-existent. Or is the reference to WWII evidence of some form of blind nationalistic self-importance.

The view that the US saved Australia from Japanese dominion, (or Europe from German for that matter) is short sighted, simplistic, and frankly disrespectful to the 1000s of Australian men who successfully fought the Japanese in New Guinea and the Pacific, my grandfather included, for the nearly three years before the US entered the war.

The only historical guarantee of US non-involvement in the Pacific is that the Japanese people would not have been the subject of two unnecessary live tests of nuclear weapons. With the Russian Forces under Zukov in a position to take Japan with limited casualties (just as they had the Japanese holdings in mainland Asia), it was only the US' need to gain Japan as a post war base, that can be offered as genuine strategy behind those bombs. Granted the Japanese surrendered to MacArthur, but they were so weakened by the Russian advance through Asia that there is no guarantee that the US was always going to take that victory.

It is indicative of the US' post war self-importance that the role of Russia in WWII is not as widely recognised as it should be. Hitler killed himself when Russians entered the building, while the US forces had only advanced as far as the Elbe. The German Army surrendered to Montgomery, not Patton or Eisenhower. They were fighting a war with Britain and Russia and surrendering to Russian forces would have meant immediate reparations for their "sins".

The problem for me with this things is I can never sort genuine discussion and curiosity from the the time wasters.

I now feel strongly that you're a common garden variety Troll. Good luck with the rest of your life. I hope your views on music and recording copyright don't turn out to be too expensive for you in your website endeavour.

Reply [edit]

Poster: ABLEBAKER Date: Nov 12, 2009 8:33pm
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

The big print gives it to you and the little print takes it away. Trouble is: there's more little print than there is big print!

Reply [edit]

Poster: Brackney Date: Nov 11, 2009 9:31pm
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

As the link did not successfully upload, I'll try again:

Reply [edit]

Poster: Video-Cellar Date: Nov 12, 2009 7:48am
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

The information on the page you linked contains out-of-date and severely flawed/misinterpreted analysis of the copyright situation for pre-1972 recordings. Naxos lost the case on "appeal". The judgement I linked to was the "appeal judgement" (decision on a certified question regarding a summary judgement).
A summary of the judgement is available here:
The full judgement is here:

49 US states currently have statutory provisions for the copyright protection of sound recordings made prior to 15 Feb 1972. The only state without specific statutes (but with the reasonable expectation of common law protection) is Vermont. Secondary statutes and common law principles that are commonly invoked in infringement cases relate to: piracy, unfair competition and trade practises, misappropriation, fraud, conversion, passing off, and privacy and publicity rights.

This post was modified by Video-Cellar on 2009-11-12 15:48:31

Reply [edit]

Poster: dimitriskats Date: Nov 3, 2009 9:06am
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

Thanks for your time! Very elucidating reply!

Reply [edit]

Poster: pickford82 Date: Oct 7, 2009 2:24pm
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

Ha! What do you want - there are entire Michael Jackson albums uploaded here (at opensource audio) and they don't delete them despite numerous requests! Seems like noone ever checks what's being uploaded...

I don't even know how Glenn Miller, Benny Goodman and Duke Ellington works are "in a public domain".

Reply [edit]

Poster: dimitriskats Date: Oct 8, 2009 12:54am
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

Thanks for answering. "Too good to be true" still holds!

Reply [edit]

Poster: Stephen Banham Date: Nov 19, 2009 12:23am
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

Damn. I'm an Australian guy and was hoping to use a fair bit of "public domain" stuff from this site in a feature-film I am making, but it looks like I'll need to see a lawyer and find out how much these suckers will cost :(

When will history and culture stop being owned by individuals and companies?!

Reply [edit]

Poster: Video-Cellar Date: Nov 19, 2009 12:52am
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

As long as history and culture are commercially exploitable copyright will continue to be extended. In the US, full-term copyrights should expire annually bringing a new year into the public domain at the begining of each new year. In the last 31 years the copyrights of only 2 years have entered the public domain. All works published in 1921 entered the public domain on 1 Jan 1978 the same date that existing full term copyrights were extended from 56 to 75 years. 1922's works entered the public domain on 1 Jan 1998. Then the 20 year "Bono" extension was brought in. 1923's are due to enter the PD on 1 Jan 2019. What's the bet that 1924's don't go PD until 2040? If all these extensions didn't happen, all 1953 copyrights would be expiring this year. And it would be 1981's works if they never added the renewal period.

If your using music tracks in a film in Australia and the recording is from 1954 or before and the composer and lyricist died before 1954 its PD and fine to synchronise. You just have to watch online and overseas distribution. We have also got rule of the shorter term so if the composition is PD in the US (pre-1923 or 1923-1963 and not renewed) it is PD in Australia. But that can get complicated because musical arrangements can be protected for as a new composition and you needed good documented copyright research to get insurance.

There are some copyright clearance places that will do the due dilligence research and certification so you can get indemnity insurance, which is usually a lot cheaper than licencing. Australian copyright law is pretty balanced in terms of penalties too. The penalties for falsely pusuing "copyright violations" in PD works are almost the same as for copyright infringement itself. That can be an advantage and gives some leverage if someone threatens court action. You can get an injunction from the court to stop false claims in their tracks.

Reply [edit]

Poster: Stephen Banham Date: Nov 19, 2009 5:31pm
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

Thank you SO much for you informative response!

Just a couple questions:
Are you saying these copyright houses just insure you in case you get sued, but then you can go to town? Can you point me in the direction of any? And would that just be coverage for within Australia?

Also what was the "Bono" extension?
Are you Australian?

Once again thanks you SO much and keep on rockin' in the un-free copyright-controlled world!

Reply [edit]

Poster: Video-Cellar Date: Nov 19, 2009 8:41pm
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

The copyright clearance places just do the research and certification. But you can also do your own research if you document it. You usually have to get two records showing the composers date of death and the works publication date. Scans of newpaper obits and Birth, Deaths and Marriages records usually does the job. Most of this stuff is online or at the local library on mcrofilm. The scans of the US copyright registries in the Texts section of IA can be used as evidence of publication for US works from before 1923.

There used to be a research and clearances service for film called InSynch. I think they have been sold off but if you google "copyright clearance" you should find something.

The insurance comes from an insurer. Most Australian insurers have a IP and copyright claims option in Professional Indemnity Insurance. You can bundle copyright and public liabilty (and sometimes completion) into the one policy. Some policies cover you for everywhere but charge a little extra for North American coverage.

The 'Bono' Extension was last US 20 Year copyright extension from 1998. It was named after Sonny Bono who had instigated the legislation in the early 90s. It extended the full term copyright for US works made before 1978 from 75 years to 95 years.

I am from Australia. I own one of the last few public domain movie collections that hasn't been bought out by the copyright industry.